Daily Comment on News and Issues of Interest to Michigan Lawyers

01/27/2010

Crossroads: Are Changes to Mediation in Order?

The Business Impact Committee of the State Bar’s Judicial Crossroads Task Force met Jan. 15 to continue its discussion on the advisability of a business court in Michigan andthe pros and cons of the various models adopted in other states.

A key consideration is the role of ADR in the resolution of business disputes.The committee heard a presentation from Deborah R. Hensler, Judge John W. Ford Professor of Dispute Resolution and Associate Dean for Graduate Studies at Stanford Law School.Based on her reading of the empirical evidence, Hensler is a skeptic about the efficacy of case management techniques, asserting that “we know less about the effects of case management than some judicial reformers claim” and that “some of the case management approaches that U.S. experts sometimes recommend to courts … may not have the consequences the experts suggest they will have.

A critic of the wholesale use of mediation, she describes mandated civil case mediation as “a new and largely unregulated industry that operates, by design, behind closed doors.” She is pessimistic that court systems can identify a “sweet spot” for the timing of mandated mediation.The committee welcomes the views of Michigan’s experienced practitioners. What do you think?Has Michigan’s mediation rule worked for you? What is your experience in federal court?Have you practiced before a business court in another state; what did you think?